During the holiday season, many police departments place special emphasis on DWI patrol and detection. The police know that during the month of December and through New Years day, many families and offices host holiday parties and serve alcohol to those in attendance. The police do not care about the parties themselves, but rather look out for all the guests who decide to drive home from a party after drinking. Unfortunately, many drivers have the misconception that they are susceptible to DWI charges if they only had one or two drinks. This misconception is based on the notion that DWI charges depend solely on a breath test which determines a driver’s Blood Alcohol Content (BAC). However, both New Jersey and New York have TWO methods by which a court can find a driver guilty of DWI. The first method hinges on a breath test which determines a driver’s BAC. This is called Per Se DWI. If the test was properly administered and the machine, properly calibrated, produces a reading of 0.08% or above then the driver is facing a nearly certain Per Se DWI conviction. The second type of DWI conviction is often referred to as Observational DWI and is based on factors independent of a driver’s BAC. Observational DWI, as its name suggests, can be founded on any observation of an officer or witness. These often include an odor of alcoholic beverages emanating from a driver’s breath or vehicle, slurred or nonsensical speech, bloodshot and/or watery eyes and anything else that one might see, hear or smell which leads to the conclusion that the driver was intoxicated. Additionally, officers can ask a driver to perform field sobriety tests which assess the driver’s balance and coordination. A poor performance on these tests will also support a finding of DWI. Finally, any statement made by the driver will be used against him should the statement indicate that the driver consumed alcohol before operating the motor vehicle. All of these factors can combine and support a court’s finding that a driver is guilty of DWI despite the absence of any breath test evidence. It is important to understand that the law prohibits driving while intoxicated. While the most often discussed method of proving intoxication is the use of breath test machines, drivers can also be found guilty of DWI based solely on observational evidence. A driver who faces Per Se or Observational DWI charges should talk to a Traffic Court attorney as a thorough cross-examination of the arresting officer is crucial to the driver’s defense. If you have been charged with DWI, contact our office today to set up a free consultation.

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Fuld DisclosureA Legal Blog

About the Author

Prior to joining the office, Judah Fuld served as the Law Clerk to the Honorable David H. Ironson, Superior Court of New Jersey, Criminal Division. Judah first appeared in court as a member of the Fordham Criminal Defense Clinic and has since expanded his work to various areas of criminal and civil law.

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